Comments Garnered at Public Meetings Held October 24 through November 2, 2001
General Concerns:
A number of people believe caves should be kapu to all people except cultural practitioners.
A number of people had reservations and were concerned that a permit system will legalize and authorize cave access.
Some people questioned the private ownership of caves, and suggested the State, or, for some people, the Kingdom of Hawaii, should own this resource.
A number of people had reservations and were concerned that private property rights were being infringed upon should you need a government permit to enter a cave on your premises.
A number of people were concerned of undue governmental regulation and looked unfavorably at the proposal to pay a permit fee and obtain a permit to enter a cave for recreational purposes with a group as small as five persons (father, mother, three children).
Declaration of intent.
Maui: cross reference Chapter 6E.
Kona: Add language after second sentence indicating caves are sacred to native Hawaiians.
Amend language in second sentence: "The cultural and spiritual resources, including but not limited to, human burials, burial goods, artifacts, and other evidence of Hawaiian use and their associated traditions, are a valuable part of Hawaii's heritage."
Hilo: Amend language in first sentence: "Caves [and lava tubes] are unique land forms . . ."
Add a sentence indicating the state opposes commercial exploitation of caves. Someone else suggested to soften this language by adding at the end, "in sensitive areas."
Definitions.
Cave Resource
Kona: Amend the definition of : "Cave resource" means any material or substance occurring in caves, such as animal life, plant life, burial sites, funerary objects, evidence of past human use and physical attributes associated with cultural traditions, paleontological deposits, sediments, minerals, speleogens, and speleothems."
Hilo: Amend the definition of : "Cave resource" means any material or substance occurring in caves, such as native animal life, native plant life, evidence of past human use and physical attributes associated with Hawaiian cultural traditions over fifty years old, paleontological deposits, sediments, minerals, speleogens, and speleothems.
Cave
Hilo: Amend the definition of cave by deleting the last sentence or adding the words, "hollow tumulae and drain flow tubes."
Hilo: "Caves formed by lava flows are commonly referred to as lava tubes, BUT NOT ALL LAVA TUBES ARE CAVES AS DEFINED IN THIS ACT."
Kauai: Amend the definition of: "Cave" means any naturally occurring void, cavity, recess, or system of interconnected passages large enough for [human] entry occurring beneath the surface of the earth or within a cliff or ledge, including the cave resources therein, whether or not an entrance exists or is natural or man made. Such term shall include, but not be limited to, any natural pit, sinkhole, underwater cave, or other feature that is an extension of the entrance. Caves formed by lava flows are commonly referred to as lava tubes.
Cave Life
Hilo: Amend the definition of: "Cave life" means any living native plant, animal, fungus, or microorganism occurring naturally in caves or in cave entrances or entrance pits.
Kauai: Amend the definition of: "Cave life" means any living plant, animal, fish, fungus, or microorganism occurring naturally in caves or in cave entrances or entrance pits.
Owner
Kona: Amend the definition of owner to mean the Nation of Hawaii.
Delete the definition of owner, as the state owns all caves.
Scientific Purposes
Kona: Amend the definition of: "Scientific purposes" means research and/or exploration conducted not for commercial purposes or exploitation by persons affiliated with recognized scientific organizations with the intent to advance knowledge and with the intent to publish the results of exploration or research in an appropriate medium.
Speleogen and Speleothem
Hilo: delete these two definitions and use "rock and mineral formations" instead.
Amend the definition of: "Speleogen" means relief features on the walls, ceiling, or floor of any cave [or lava tube] that are part of the surrounding bedrock, including but not limited to, anastomoses, scallops, meander niches, petromorphs, rock pendants, [lavacicles, driblet spires,] and additional features unique to [lava tubes] caves.
In the definition of speleothem, the word "secondary" should be deleted and the following phrase should be added: "and additional features unique to lava tubes".
Visitation
Kona: delete visitation. If this concept remains amend as follows: "Visitation" means an activity undertaken to exhibit a cave [and which involves a group of five or more persons, or for which a fee or donation is collected for commercial or other purposes].
Additional definitions:
Hilo: add "paleontological", add "minimal disturbance"
Kauai: add "Buffer zone" using the definition from the Kauai General Plan, Chapter 3.
Prohibitions (a)
Maui and Kona: Were uncomfortable with excluding construction projects, with Kona suggesting deleting the words "in a non-construction context."
Maui: Amend the first sentence: (a) It shall be unlawful for any person, natural or corporate, [in a non-construction context] not engaged in surface based construction, to willfully or knowingly break, break off, crack, carve upon, write, burn or otherwise mark upon, remove, or in any manner destroy, disturb, deface, mar or harm the surfaces of any cave or the cave resources within, whether attached or broken, including speleothems, speleogens, and sedimentary deposits. The provision of this section shall not prohibit minimal disturbance for scientific purposes.
Maui and Hilo: Concern to temper the language, as simply walking through a cave will "disturb, destroy". Also, the inclusion of cave resource would either conflict with or preclude the need for (d).
Hilo: Add the language, "without written authorization of the owner." If this language were included, then the non-construction context could be deleted.
Hilo: Amend the first sentence: (a) It shall be unlawful for any person, natural or corporate, in a non-construction context, to willfully or knowingly break, break off, crack, carve upon, write, burn or otherwise mark upon, remove, or in any manner destroy, disturb, deface, mar or harm the surfaces of any cave or the cave resources within, whether attached or broken, including [speleothems, speleogens, and sedimentary deposits] rock and mineral formations.
Hilo: define minimal disturbance, or possibly delete the word minimal.
Hilo: In the section on prohibitions, the sentence about harming the surfaces of any cave or cave resources should be changed to read: "The provisions of this section shall not prohibit minimal disturbance such as footprints or minimal scientific collection".
Prohibitions (b)
Hilo: Amend as follows: (b) It shall be unlawful for any person, natural or corporate, to break, force, tamper with or otherwise disturb a gate to any cave, even though entrance thereto may not be gained[, without the owner's written permission being first obtained] This shall not apply to entry permitted by the owner.
Kauai: Amend as follows: (b) It shall be unlawful for any person, natural or corporate, to enter a buffer zone around any cave or break, force, tamper with or otherwise disturb a gate to any cave, even though entrance thereto may not be gained, without the owner's written permission being first obtained.
Prohibitions (c)
Hilo: Amend as follows: (c) It shall be unlawful for any person, natural or corporate, to remove, deface, or tamper with a sign stating [that a cave is posted] no trespassing or citing provisions of this chapter.
Prohibitions (d)
Kona: Amend as follows: (d) It shall be unlawful for any person, natural or corporate to take, appropriate, excavate, injure, destroy, or alter any paleontological site which may be found in a cave located on private lands of any owner thereof [without the owner's written permission being first obtained]. (e) It shall be unlawful for any person, natural or corporate to take, appropriate, excavate, injure, destroy, or alter any paleontological site which may be found in a cave located upon lands owned or controlled by the State or any of its political subdivisions[, except as authorized by the department].
Hilo: Inconsistent with (a).
Other Prohibitions
Maui: Prohibit improper activities in cave such as parties or growing marijuana.
Kona: "It shall be unlawful for any person who is not a traditional practitioner of Hawaiian culture or religion to enter any cave or lava tube. Traditional practitioners of Hawaiian culture or religion and cultural or lineal descendants may enter caves and lava tubes to participate in traditional Hawaiian cultural practices."
Kauai: Add the need to obtain a permit to make "improvements" to caves.
Prohibit publicizing of caves as attractions.
Add a section on Buffer Zones, with their establishment occurring at the local level.
Pollution.
Maui: Some people were concerned that pollution should not be grandfathered in if it is affecting a sacred site.
Kona: Do not allow pipes in caves.
Amend as follows: (a) It shall be unlawful for any person, natural or corporate, to store, dump, dispose of or otherwise place any refuse, garbage, dead animals, sewage, litter, imported soils or gravels, or toxic substances [harmful to cave life or humans,] in any cave or cave entrance; provided, however, that any cesspool or leach field that is otherwise legal and existing on the effective date of this section shall continue to be lawful as a nonconforming use or facility; provided further that such nonconforming use or facility shall not be expanded or reconstructed.
(b) It shall be unlawful to burn within a cave or cave entrance any material that produces any smoke or gasses [harmful to any naturally occurring organisms in any cave] , except as used in cultural practices.
Kona and Kauai: Cross reference Department of Health laws relating to water pollution.
Kauai: Also had a concern of proving "harm."
Kauai and Hilo: Include a provision to remedy existing conditions. Language to consider: "(c) An owner shall allow access to a cave for the purposes of cleaning the cave and returning it to a pristine condition." Another person suggested adding, "if the pollution is affecting properties of other owners."
Kauai: Amend as follows: (b) It shall be unlawful to burn within a cave or cave entrance or cave buffer zone any material that produces any smoke, engine exhaust, or gasses harmful to any naturally occurring organisms in any cave.
Disturbance of native organisms
Kona: Develop language to provide buffer zones to protect cave life.
Kona: Amend as follows: It shall be unlawful for any person, natural or corporate, to remove, kill, harm, or otherwise disturb any native organisms within any cave [except as provided by a scientific permit obtained from the appropriate agency].
Hilo: Amend as follows: It shall be unlawful for any person, natural or corporate, to willfully/knowingly remove, kill, harm, or otherwise unduly disturb any native organisms within any cave except as provided by a scientific permit obtained from the appropriate agency.
Kauai: Need to accommodate gathering rights, subsistence fishing in underwater caves.
Sale
People on every island thought artifacts should be prohibited for sale as well.
Kona: Suggested the prohibition on the purchase of artifacts, or the removal of the artifacts.
Kauai: Suggested a prohibition on the sale of funerary objects.
Hilo: Change "speleothems and speleogens" to "rock and mineral formations"
Include a prohibition on the sale of paleontological resources.
Kauai: Include a prohibition on the sale of cave life.
Permit
Maui: Some felt this section was intrusive of private property rights, others were concerned it condoned accessing caves.
Provision needs to be made for cultural use without a permit.
Kona: Over two thirds of the people were opposed to allowing any access to caves.
A cultural assessment and cultural monitor should accompany any access to caves by non-Hawaiians.
Hilo: limit the permit to commercial use only, not recreational.
Oahu: Should include a clause "Except caves on public land commonly used and designated for public visitation (examples being Kaumana Cave, Waianapanapa, Makua, Haena Sea Caves).
Amend as follows: Any person, natural or corporate, allowing or establishing public visitation to a cave shall obtain from the board a permit to open the cave for visitation. The department [shall] may charge a reasonable permit processing fee and adopt rules pursuant to chapter 91 necessary to carry out the purposes of this section.
Kauai: delete the land board and make a local decision.
Provide for the designation of kapu caves.
Liability
Maui: Amend first sentence: (a) An owner of a cave who either directly or indirectly invites or permits without charge any person to use the cave for cultural, educational or scientific purposes does not:
Kona: Make state liable for any problems.
Delete this section, as no one should be inside a cave.
Delete the protection for scientific purposes.
Kauai: Is this only valid where public access easements exist?
Confidentiality
Kona: Amend as follows: Where the department determines in consultation with the owner, burial councils and lineal descendants that dissemination of knowledge of cave location or resources could be detrimental to their protection, then the cave location and sensitive resources shall be kept confidential.
Hilo: Amend as follows: Where a owner believes [the department determines in consultation with the owner] that dissemination of knowledge of cave location or resources could be detrimental to their protection, then the department shall determine the government information on the cave location and sensitive resources shall be kept confidential.
Penalties
Kona: Amend as follows: Any person who violates this chapter or any rule adopted pursuant thereto shall be fined not [more] less than $[10,000] $100,000/$1,000,000 for each separate offense. In addition, a fine of [up to $100] not less than $10,000 [may] shall be levied for each specimen of cave resource that is damaged, destroyed, removed, taken, sold, or possessed illegally under this chapter. Each day of continued violation under this chapter shall constitute a distinct and separate offense for which the violator [may be punished] shall be prosecuted. Equipment used by the violator in the course or furtherance of the violation shall be subject to seizure and disposition by the State without compensation to its owner or owners. Penalties under this section shall not limit the imposition of penalties pursuant to chapter 6E.
Hilo: Amend as follows: Any person who violates this chapter or any rule adopted pursuant thereto shall be fined not more than $10,000 for each separate offense. In addition, a fine of up to $100 may be levied for each specimen of cave resource that is recklessly/willfully damaged, destroyed, removed, taken, sold, or possessed illegally under this chapter. Each day of continued violation under this chapter shall constitute a distinct and separate offense for which the violator may be punished. Equipment used by the violator in the course or furtherance of the violation shall be subject to seizure and disposition by the State without compensation to its owner or owners. Penalties under this section shall not limit the imposition of penalties pursuant to chapter 6E.
Kauai: Amend as follows: Any person who violates this chapter or any rule adopted pursuant thereto shall be fined not [more] less than $10,000 for each separate offense. In addition, a fine of [up to $100] a minimum of $1,000 may be levied for each specimen of cave resource that is damaged, destroyed, removed, taken, sold, or possessed illegally under this chapter. Each day of continued violation under this chapter shall constitute a distinct and separate offense for which the violator may be punished. Equipment used by the violator in the course or furtherance of the violation shall be subject to seizure and disposition by the State without compensation to its owner or owners. Penalties under this section shall not limit the imposition of penalties pursuant to chapter 6E.
Provide language to place the fines in a special fund.
Kauai and Hilo: Include who to call for enforcement.
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